This will absolutely be my last post about Hall/MPS. I promise. I was going to let it go without taking a run at Jason Gregor for his silly post but, after Bob Stauffer brought it up again today with Elliotte Friedman and they both said some things with which I disagree, I figured there was probably still one last post left in it. As far as Gregor’s asinine post goes, I’ll say no more than I continue to be astounded by his sense of the moment when it comes to an opportunity to make himself look ridiculous by getting factual and CBA stuff wrong while being snide about others having done so.
If you’re interested in the Stauffer/Friedman discussion, it can be found here. I’ve been tossing out lines on Twitter on all night about the “Toronto based lawyer” bit that Stauffer kept hammering at the beginning. I’m not entirely sure why any of that is relevant to what I think about what the Oilers should do with Hall/MPS but it strikes me as a vague sort of an attack on the value of what I have to say about this. If I’m purporting to break news from my sources surrounding the team and people are trying to figure out the amount of weight that they should attach to it, I can understand that. It’s a bit harder on philosophical points to understand how where I am or what I do has anything to do with anything. The whole thing vaguely smelled of “This guy’s views should be treated with suspicion because he’s a Toronto lawyer and doesn’t understand the reality.” Lame – Stauffer’s better than that.
Anyway, Stauffer and Friedman discussed five points which, I think, cover a lot of the criticism that my point has received. There was 1) the expectations of the season ticket holders, 2) the feelings of the players involved and their relationship to the team, 3) the fact that the Devils and Red Wings haven’t had to deal with really high end prospects, 4) the whole idea that if you’re one of the twenty best players, you make the team and 5) (this is really one of Stauffer’s babies) Player X from days of yore was put right on the team at age 18.
Friedman brought up the point about the season ticket holders. At the risk of coming off as a Toronto based lawyer, a very similar case was decided against the fans who claimed that they were entitled to see Alexei Yashin perform:
They argue that the implied term which has to be found to support the plaintiff’s position is that the club agreed to have Mr. Yashin on its roster as an active player or else be in breach of its contract with the season ticket holder. However there are a number of possible intermediate positions between the one extreme where the full terms of the contract amount exclusively to the right to sit down and watch whatever players the club cares to put on the ice and the other extreme where the club is duty bound to play Mr. Yashin, no matter what, or be in breach of contract. There exist possible implied terms which would fall somewhere between these two extremes. For example, the contract could be found to contain the implied term that the Ottawa Senators Hockey Club agreed to take all reasonable steps within their control to ensure that Mr. Yashin would be part of its roster in the 1999-2000 season. I agree with Mr. Cogan that the state of the law does not require the proof that the unlawful interference resulted in an actual breach.
The issue before this court is whether the evidence adduced on this motion supports the existence of such an implied term. As indicated, the plaintiff chose not to offer any evidence. The plaintiff had to “put his best foot forward”. He chose to rely exclusively on the evidence of Mr. Mlakar. The plaintiff is therefore relying at best on the marketing brochures or other marketing techniques used by the Ottawa Senators Hockey Club to sell tickets as proof that the club had legally bound itself to play Mr. Yashin barring circumstances beyond its control. The evidence of Mr. Mlakar falls short of showing that any of the representations made in the marketing campaign were made with the necessary promissory intent. Such an intent is required in order for the court to find them to be an enforceable term of the contract. It would have been very easy for the plaintiff to file his own affidavit stating that he understood this to be one of the terms of the contract. His silence when the rule requires him to speak out entitles the court to find the plaintiff has no such evidence to offer. Moreover, on the evidence the implied term suggested is too vague and uncertain. The court is not at liberty to simply create a contract between the parties in the absence of some evidence supporting that conclusion. There is therefore no evidence to weigh and no factual inferences to draw. In any event as a matter of law I find there is no evidence to allow a court to find the existence of the implied term.
I would expect a similar outcome in any action brought against the Oilers.
More seriously, Friedman was talking as if I’ve said that all three of Eberle, MPS and Hall should be sent down and that he doesn’t know how the Oilers could sell tickets in that circumstance. With the greatest of respect for Elliotte, first of all, I don’t think Eberle should be sent down and I haven’t been making that argument. In virtually any other year, Eberle would be considered a fine draw coming off a terrible season all by himself. I suspect that there are a lot of teams in the NHL that he’d make this year and which would be happy to have him as their “Come see the future” card all by himself.
Edmonton is also a market that hasn’t had problems moving tickets in the past few years, even for terrible teams, although I’ll concede that there were some signs of softening demand this year. What’s more, it’s purportedly a sophisticated market. Fans could, I expect, be sold on the benefit of letting Hall develop for another year in junior and letting Paajarvi spend a year in OKC getting a feel for the North American game and another year bigger and stronger. When Captain Canada Jr. was sent down last year, there wasn’t really much in the way of complaining about it.
I have a hard time believing that Oilers fans could not be sold on waiting a year for Hall and MPS if the organization put some effort into selling the idea that it was the right thing to do for the players. Given the time when the decision to buy tickets is made in a market like Edmonton’s, I doubt that sending them down would have a significant impact on ticket sales. I’m not really moved by this as a reason not to send them down. It strikes me as a little funny that Stauffer’s making this point – he’s the guy who’s been calling for a full-out rebuild of the Oilers since 2007. That necessarily involves a bunch of pain for season ticket holders. I’m not sure why the pain has to stop NOW (and everyone seems to concede that the team is going to be terrible anyway), other than it being a convenient time to decide that it does, given that the Oilers appear to have decided that MPS and Hall will make the team.
Even if I’m wrong about ticket sales, I suppose I can take some solace in the fact that I’m genuinely interested in the best interests of the team on-ice and less worried about what goes on in the board room. I’ll worry about the Oilers off-ice situation when they stop letting Steve Tambellini light millions of dollars on fire.
As for the second point, the feeling of the players involved, I’m a little irritated that nobody who brings this up seems to feel any need to respond to my counterpoint about this – it happens all the time in baseball, without any consequences for the team that does it. Are hockey players that much more self centred than baseball players? I’ve got a hard time believing that to be the case. I’ve also pointed to Jason Spezza, something that nobody challenges when I make this point, who also struggled to make the Senators despite seemingly being good enough – the Senators held him to a very high standard in terms of what he needed to show to make the team.
In the responses I’ve seen to this and, regrettably, in the conversation between Stauffer and Friedman, there were more vague fears expressed without any recognition of the fact that this happens in other sports without much in the way of consequences for teams. I would, as well, guess that there are lots of players cut every season who don’t think that they deserve to be sent down at the end of training camp who ultimately end up making (and starring in) the NHL. We don’t constantly hear about players sticking it to teams at the end of their first contract.
Now, as for the Wings and Devils, who I’ve pointed to as an example of teams that don’t rush people. The last three points are all, to an extent, intertwined. Everyone who has pointed out that the Devils and Red Wings haven’t had very many picks in the top twenty is correct. That does not, however, mean (particularly in the Devils’ case) they haven’t had players who pressed for spots as teenagers. Patrik Elias had a very good AHL season at 19 and got into just one NHL game. Scott Gomez had an outstanding year in his draft year (49 points in 45 games for an horrific team) and was sent back down to score 108 points in 58 games. He put up 70 points in the NHL the following year, so I’m hard pressed to see the argument that he couldn’t have been a contributor a year earlier. Zach Parise dominated in college hockey in his draft year and was left in college for another year.
I’ll concede that the Red Wings haven’t had as many high end prospects as teenagers as the Devils but, and I think this is important, I don’t know that it’s fair to say that MPS is any better as a prospect now than the Devils’ guys were then and they were left in place. I’m by no means convinced that MPS would score a point a game in the AHL this year – it’s a very tough league. If you’re going to err, particularly given the financial consequences of doing so, does it not make sense to err on the side of having the guy really establish that he’s too good for the level he’s at?
As I mentioned, my fourth point kind of ties into this. The whole idea that the twenty best guys are the twenty who make the team simply isn’t true. Guys are sent down for contract reasons all the team and neither of Stauffer or Friedman are naive enough to think that that isn’t the case. I’d bet that hockey players know this pretty well. Guys are sent down because other guys would have to clear waivers and they don’t. Guys are sent down because they’re on two way contracts and others aren’t. Bobby Ryan certainly could have played in the NHL before he did but the Ducks had cap problems and he didn’t need to clear waivers. Martin Gerber has outplayed anyone else in the Oilers camp and is almost certainly a better goalie than either of DD or JDD this year but they have one way deals and the Oilers aren’t big on recognizing sunk costs so he goes down.
I’ve listened to Stauffer talk about this a few times this week and one of the things that he has harped on is that the Red Wings didn’t send Steve Yzerman down. He added to that today, pointing out that the Canadiens didn’t send Guy Lafleur down to the Voyageurs when he struggled to start his career. (“Struggled” being a relative term; he started his career by finishing fifth in scoring on the defending Stanley Cup champions. Making the early 1970′s Montreal Canadiens and finishing fifth in scoring was probably somewhat more difficult than making the modern era Edmonton Oilers).
The problem with these examples is that, while they provide Stauffer with an opportunity to go on about hockey history with reference to famous names, they aren’t really relevant to the discussion. Yzerman and Lafleur both made the NHL at a time when players were slaves, basically owned in perpetuity by their teams. There was also no salary cap. In the circumstances, the downside of playing them in the NHL was pretty minimal. One of my most vivid memories from law school is my torts prof teaching us how to go after existing precedents by looking to kick out the premises on which they’re built. The issues that drive my point about Hall and MPS simply did not exist when the decisions cited by Stauffer were made.
There’s a sixth point that wasn’t made by either of them but which has been made by others that I want to address too: the idea that forwards drafted first overall always make the team out of training camp. While this has historically been the case, this doesn’t necessarily mean that the practice is a good one. To start with, prior to the introduction of the current CBA, all you did by starting your high picks at 18 or 19 instead of 20 was push the date of their arbitration eligibility forward, in a league in which there was no salary cap. General managers prior to 2005-06 simply were not operating under the current constraints, which limits the value of their decisions as precedents. If you look at the guys who’ve come into the league since the lockout, you have Crosby (one of the two best players in the NHL, 2005-2020), Erik Johnson (back to university for a year), Kane (by a GM who was subsequently fired, in part, because of the enormous salary cap mess that he created which wasn’t helped by Kane being in the NHL), Stamkos (drafted by a team owned by idiots who were desperate to sell tickets) and Tavares (ditto).
You can make a pretty compelling argument that, outside of Pittsburgh (and I’m not completely impressed with their management), the teams making decisions on those players are not known for employing best practices. Nobody’s going to make the argument that the judgment of Len Barrie in matters pertaining to hockey judgment is sound in any circumstance other than this, based on his ownership of the Lightning. The same is true with respect to Charles Wang. These are not, by and large, teams that have been operated particularly well. Where pre-2005 precedents are suspect and the judgment of a lot of people plunking 18 year olds into the NHL is questionable, it seems senseless to me to treat their practices with young players as being gospel.
Finally, a seventh point. I don’t concede the development point, that these fellows are best developed at the highest level at which they don’t get completely destroyed. I also don’t concede that either one of them has proven that they have nothing further to learn at the previous level. It’s the crux of the argument that Lowetide made but it’s an unproveable point. He cites Earl Weaver, who managed during a different time, when there were no costs associated with developing a guy at the highest level beyond the team maybe giving opportunity to a less than optimal player. Weaver never had to consider the marginal cost of doing so. His view (and argument) might have been different if he had too.
Similarly, it’s not like consensus on this point is unanimous. As I pointed out above, when people say that everyone does it, they’re generally talking about poor teams. Brian Burke’s an NHL GM and he prefers to have his players spend some time in the AHL and has backed that up with fellows like Bobby Ryan, Ryan Getzlaf and Cory Perry. Lou Lamoriello is, at most, extremely hesitant to drop guys directly into the NHL at a young age. Both of these guys have enjoyed success that the Oilers management hasn’t.
I don’t think either side of this debate can appeal to a unanimous authority position.
Friedman made the point, with which Stauffer readily agreed, that I’m right if you consider my point in a vacuum. With all due respect to both of them, it strikes me that they made a lot of points based purely on speculation and fear of the unknown, while ignoring some of the more difficult points for them to deal with. They (and everyone else who thinks that this is a terrible idea) are free to make whatever arguments they want to make but (and this is particularly true of what I’ve heard Stauffer say about it) I think I’ve put forward some reasonably substantial points (like guys like Spezza being sent down and still on the team nine years later) that have been basically handwaved away while irrelevant things like “BUT GUY LAFLEUR STARTED IN THE NHL AT AGE TWENTY FORTY YEARS AGO” are spouted.
Ultimately, they’re both going to be in the NHL this year. If things go well and they both turn into players, costing the Oilers $11MM or so between in 2013-14, it should be remembered that Tambellini and the Oilers could have had an extra $9MM or so in cap room had they held them back a year. That money, spent wisely, could well be the difference between winning the Stanley Cup or not. This is the exact same point I made with respect to Dustin Penner – the Oilers are playing for now at the cost of lowering the ceiling in the future. I’m sure I’ll still be watching the Oilers during that season but I’ll spend a large part of the season muttering to myself (and, given that I have a forum, complaining here) about the various holes that could have been filled with some money to put the Oilers over the top if they’re close.